Okay, let’s get this out there upfront: many people who read this site hate the term “intellectual property” and get very upset when anyone uses it. And we agree with many of the reasons behind this thought process. In the past, we’ve explored some of the alternatives, but none are really that great or useful. We admit that “intellectual property” is not a great term — in large part because it implies something that just isn’t there: mainly, economic concepts that apply to rivalrous goods but simply don’t apply to non-rivalrous ones. Even so, for the most part, our response to this has been to try to use the specific name of the specific form — i.e., copyright, patents, trademark, trade secrets, publicity rights, etc. — rather than the generic term “intellectual property.” But oftentimes that doesn’t feel appropriate either. And, let’s face it, most of the rest of the world still uses the term “intellectual property”, and denying that is kind of silly.
I’ve been thinking about this a lot lately, and I think the real issue is that there are two different ways to use the term, and only one is really valid. “Intellectual property” is a useful term, but only when it refers to the copyright, patent or trademark itself and not the underlying content, invention or mark. For one thing, the only reasonable arguments for how “intellectual property” has some characteristics of actual property are the ones based on this idea — e.g. a copyright is rivalrous as it is held by a specific person or group, and it functions in many ways like a piece of property (it can be bought and sold), but the underlying song (or movie, book, etc.) is not rivalrous. Describing a company that owns a variety of copyrights, patents and trademarks as having “a portfolio full of intellectual property” makes sense; saying a music pirate has “a hard drive full of stolen intellectual property” does not. Of course, both things are still artificial — the piece of intellectual property that is a copyright only exists because the law creates it — but at least it does exist as a rivalrous thing, whereas no amount of law or enforcement will ever succeed in making content itself rivalrous.
Unfortunately, many intellectual property system supporters and maximalists frequently confuse the two, and interchangeably switch around the underlying content/invention for the copyright/patent. It’s why we see ridiculous things like car manufacturers arguing they still own some of your car, or DVD makers arguing they still own part of your DVD. It’s the same thinking that leads to ridiculous reports that attribute all of the economic contribution of content, inventions and trademarks (even in grocery stores!) to “intellectual property” — allowing them to falsely imply that the “intellectual property laws” are responsible, rather than the underlying content, inventions and marks.
So it’s high time to call this out and make the clear distinction. If people are going to go on using the term “intellectual property” — and they will — then at least point out that the content or the invention or the logo or whatever are not the “property”. The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark. Then, we can look more honestly at the actual contribution of those laws and at the true nature of ownership. If GM holds the copyright on the software in your car, it has no actual ownership stake in any part of your car. We should all agree on that. But it can still own the copyright on that software — and it can do as it wants with that copyright. But the actual copy of the software (inasmuch as that’s even a discrete thing that actually exists) remains yours.
I recognize that some will fight this and continue to insist that any use of the term “intellectual property” is a bad idea, but that’s a losing battle. Let’s admit that there are certain property-like aspects in the legal instruments by themselves, but reject the false notion — often pushed by those abusing intellectual property laws — that the underlying content, invention, trademark, etc. has any property-like rights itself.